Equality before the law : unconstitutionality of separate colored schools in Massachusetts : argument of Charles Sumner, Esq., before the Supreme Court of Massachusetts, in the case of Sarah C. Roberts vs. the city of Boston, December 4, 1849

Equality before the Law ; Unconstitutionality of separate
Colored Schools in Massachusetts,

ARGUMENT

OF

in

Hi.

.sq.

BEFORE

THE SUPREME COURT OF MASSACHUSETTS,

IN TIIE

CASE OF SARAH C. ROBERTS ys. THE CITY OF BOSTON,

DECEMBER 4, 1849.

WASHINGTON:

F. & J. RIVES & GEO. A. BAILEY,

REPORTERS AND PRINTERS OF TIIE DEBATES OF CONGRESS.

1870.

Equality before the Law.

This argument, though addressed to the Supreme
Court of Massachusetts, is mainly national and uni-
versal in topics, so that it is applicable wherever,
especially in our country, any discrimination in edu-
cational opportunities is founded on race or color.
It is a vindication of Equal Rights in Common
Schools. The term " Equality before the Law" was
here for the first time introduced into our discus-
sions. It is not found in the common law, nor until
recently in the English language. It is a translation
from the French, whence Mr. Sumxer took it.

The Supreme Court heard the argument and, in
their opinion, complimented the advocate; but they
did not take the responsibility of annulling the
unjust discrimination. After stating the claim of
Equality before the Law, Chief Justice Shaw reduced
it to very small proportions when he said that it meant
'only that the rights of all as they are settled and
regulated by law are equally entitled to the pater-
nal consideration and protection of the law for their
maintenance and security.' (a) This made it mean
nothing; but such was the decision. The victrix
causa was not less odious to Mr. Sumner, who never
ceased to regret the opportunity lost by the court of
contributing an immortal precedent to the recogni-
tion and safeguard of human rights.

The error of the court was repaired by the Legis-
lature of Massachusetts, which, in 1855. (a) enacted
as follows :

" In determining the qualifications of scholars to
lie admitted into any Public School or any District
School in this Commonwealth, no person shall be
excluded from a Public School on accountof race,
color., or religious opinions of the applicant or
scholar."

By other sections the child thus excluded was en-
titled to " damages therefor in an action of tort,"
and by a bill of discovery to obtain evidence. Then
came this supplementary protection :

'"Every person belonging to the School Committee
under whose rules or directions any child shall bo
excluded from such school, and every teacher of any
such school, shall, on application by the parent or
guardian of any such child, state in writing the
grounds and reasons of such exclusion."

Since this legislation Equal Rights have prevailed
inthe Common Schools of Massachusetts, and nobody
would go bnck to the earlier system.

Associated with Mr. Stjmxf.r in this ease was
Robert Morris, esq., a colored lawyer.

it please your Honors :
Can any discrimination on account of race
or color be made among children entitled to
the benefit of our Common Schools under the
Constitution and Laws of Massachusetts ? This
is the question which the Court is now to hear,
to consider, and to decide.

(a) Robert* vs. ( 'ity < >' Boston, 5 Gushing, 206.
(a) , lusetts, 1855, cap. 253 ; G

Siatr' o) Mat acl setts, cap. 41, sec. 9.

Or, stating the question with more detailand
with more particular application to the facts
of the present case, are the Committee having
superintendence of the Common Schools of
Boston intrusted with power, under the Con-
stitution and Laws of Massachusetts, to exclude
colofed children from the schools and compel
them to find education at separate schools set
apart for colored children only, at distances
from their homes less convenient than schools
open to white children ?

This important question arises in an action
by a colored child only five years old who, by
her next friend, sues the city of Boston for
damages on account of a refusal to receive
her into one of the Common Schools.

It would be difficult to imagine any case
appealing more strongly to your best judgment,
whether you regard the parties or the subject.
On the one side is the city of Boston, strong in
wealth, influence, character ; on the other side
is a little child, of degraded color, of humble
parents, and still within the period of natural
infancy, but strong from her very weakness
and from the irrepressible sympathies of good,
men, which, by a divine compensation, come
to succor the weak. This little child asks at your
hands her personal rights. So doing, she calls
upon you to decide a question which concerns
the personal rights of other colored children ;
which concerns the Constitution and Laws of
the Commonwealth ; which concerns that pecu-
liar institution of New England, the Common
Schools : which concerns the fundamental prin-
ciples of human rights ; which concerns the
Christian character of this community. Such
parties and such interests justly challenge your
earnest attention.

Though this discussion is now brought for
the first time before a judicial tribunal it is no
stranger to the public. In the School Com-
mittee of Boston for five years it has been the
occasion of discord. No less than four differ-
ent reports, two majority and two minority,
forming pamphlets of solid dimensions devoted
to this question, have been made to this Com-
mittee and afterwards published. The opinions
of learned counsel have been enlisted. The
i controversy, leaving thc.=e regular channels,

overflowed the newspaper press, and numerous
articles appeared espousing opposite sides. At
last it has reached this tribunal. It is in your
power to make it subside forever.

THE QUESTION STATED.

Forgetting many of the topics and all of the
heats heretofore mingling with the controversy,
I shall strive to present the question in its
juridical light, as becomes the habits of this
tribunal. It is a question of jurisprudence on
which you are to give judgment. But I cannot
forget that the principles of morals and of
natural justice lie at the foundation of all juris-
prudence. Nor can any reference to these be
inappropriate in a discussion before this Court.

Of equality I shall speak, not only as a senti-
ment, but as a principle embodied in the Con-
stitution of Massachusetts and obligatory upon
court and citizen. It will be my duty to show
that this principle, after finding its way into
our State Constitution, was recognized both
in legislation and judicial decisions. Consider-
ing next the circumstances of this case, it will be
easy to show how completely they violate Con-
stitution, legislation, and judicial decisions,
first, by subjecting colored children to incon-
venience, inconsistent with the requirements
of Equality, and, secondly, by establishing a
system of Caste odious as that of the Hindoos,
leading to the conclusion that the School Com-
mittee have no such power as they have exer-
cised, and that it is the duty of the Court to set
aside their unjust by-law. In the course of
this discussion I shall exhibit the true idea of
our Common Schools and the fallacy of the
pretension that any exclusion or discrimination
founded on race or color can be consistent
with Equal Rights.

In opening this argument, I begin naturally
with the fundamental proposition, which,
when once established, renders the conclusion
irresistible. According to the Constitution of
Massachusetts all men without distinction of
race or color are equal before the law. In the
statement of this proposition I use language
which, though new ia our country, has the
advantage of precision.

EQUALITY BEFORE THE LAV,' ITS MEANING.

I might perhaps leave this proposition with-
out one word of comment. The Equality of
men will not be directly denied on this occa-
sion, and yet it is so often assailed of late that
I shall not seem to occupy your time super-
fluously, I trust, while endeavoring to show
what is understood by this term when used in
laws, constitutions, or other political instru-
ments. Mr. Calhoun, in the Senate of the
United States, and Lord Brougham, in his
recent work on Political Philosophy, part II,
cap. 4, characterize Equality as impossible I
and absurd. Had they chosen to comprehend !
the extent and application of the term thus
employed, something if not all of their objec-
tion would have disappeared. That we may
better appreciate its meaning and limitation,

I am induced to exhibit the origin and growth
of the sentiment, which, finally ripening into
a formula of civil and political right was em-
bodied in the Constitution of Massachusetts.

Equality as a sentiment was early cherished
by generous souls. It showed itself in dreams
of ancient philosophy, and was declared by
Seneca, when in a letter of consolation on
death, he said, " Prima enim pars Equitatis
est Equalitas.'" (Epist. 30.) The first partof
Equity is Equality. But not till the truths of
the Christian Religion was it enunciated with
persuasive force. Here we learn that God is
no respecter of persons ; that he is the Father
of all ; and that we are all his children and
brethren to each other. When the Saviour
taught the Lord's Prayer he taught the sublime
doctrine of Human Brotherhood enfolding the
Equality of men.

Slowly did this sentiment enter the State.
The whole constitution of government was in-
consistent with it. An hereditary monarchy,
an order of nobility, and the complex ranks
of superior and inferior established by the
feudal system all declare, not the Equality but
the inequality of men, and allconspire to per-
petuate this inequality. Every infant of royal
blood, every noble, every vassal is a present
example, that whatever may be the injunctions
of religion or the sentiment of the heart men
under these institutions are not born equal.

The boldest political reformers of early times
did not venture to proclaim this truth, nor did
they truly perceive it. Cromwell beheaded his
king, but secured the supreme power in hered-
itary succession to his eldest son. It was left
to his loftier contemporary, John Milton, in
poetic vision, to be entranced

"With fair Equality, fraternal state."

Sidney, who perished a martyr to the liberal
cause, drew his inspiration from classic and
not from Christian fountains. The examples
of Greece and Rome fed his soul. The English
Revolution of 1688, partly by force and partly
by the popular voice, changed the succession to
the Crown, and, if we may credit loyal English-
men, secured the establishment of Freedom
throughout the land. But the Bill of Rights
did not declare, nor did the genius of Somers
or Maynard conceive the political axiom, that
all men are born equal. It may find accept-
ance from individuals in our day, but it is dis-
owned by English institutions.

I would not forget the early testimony of the
judicious Hooker, who in his Ecclesiastical
Polity, that masterly work, dwells on the
equality of men by nature, or the subsequent
testimony of Locke, in his Essay on Govern-
ment, who, quoting Hooker, asserts for him-
self that " creatures of the same species and
rank, promiscuously born to all the same
advantages of nature and the use of the same
faculties, should be equal one among another
without subordination or subjection." Hooker
and Locke saw the equality of men in a state

of nature ; but it is difficult to find in them a
practical guide.

It is to France that we must pass for the
earliest development of this idea, its amplest
illustration, and its most complete, accurate,
and logical expression. In the middle of the
last century appeared the renowned Encyclo-
pedic, edited by D'Alembert and Diderot.
This remarkable production, where science,
religion, and government are discussed with
revolutionary freedom, contains an article on
Equality, first published in 1755. Here we find
the boldest expression of this sentiment down
to that time. ''Natural Equality," says this
authority, ,c is that which exists between all
men by the constitution of their nature only.
This Equality is the principle and the founda-
tion of liberty. Natural or moral equality is
then founded upon the constitution of human
nature common to all men who are born, grow,
subsist, and die in the same manner. Since
human nature finds itself the same in all men,
it is clear, that according to nature's law, each
ought to esteem and treat the others as beings
who are naturally equal to himself; that is to
say, who are men as well as himself.'' It is
then remarked that political and civil slavery
is in violation of this Equality ; and yet the
inequalities of nobility in the State are allowed
to pass without condemnation. Alluding to
these, it is simply said that they who are
elevated above others ought to treat inferiors
as naturally their equals, shunning all outrage
and demanding nothing beyond what is due,
but demanding with humanity what is incon-
testably due.

Considering the period at which this article
was written we shall be astonished less by its
vagueness and incompleteness than by its
bravery and generosity. The dissolute des-
potism of Louis XV poisoned France. The
antechambers of the King were thronged by
selfish nobles and fawning courtiers. The coun-
cils of Government were controlled by royal
mistresses. The King only a few years before,
in defiance of Equality but in entire harmony
with the conduct of the School Committee in
Boston founded a military school, for nobles
only, carrying into education the distinction of
Caste. At such a period the Encyclopedia did
well in uttering important and effective truth.
The sentiment of Equality was fully declared.
Nor should we be disappointed, that, at this
early day, even the boldest philosophers did
not adequately perceive, or if they perceived,
did not dare to utter, our axiom of liberty.

Thus it is with all moral and political ideas.
First appearing as a sentiment, they awake a
noble impulse, filling the soul with generous
sympathy, and encouraging to congenial effort.
Slowly recognized, they finally pass into a for-
mula to be acted upon, to be applied, to be
defended in the concerns of life.

Almost contemporaneously with this article
in the Encyclopedia our attention is arrested
by a poor solitary of humble extraction, born

at Geneva, in Switzerland, of irregular educa-
tion and life, a wanderer from his birth-place,
enjoying a temporary home in France Jean
Jacques Rousseau. Of audacious genius,
setting at naught received opinions, his ear-
liest appearance was by an eccentric Essay
on the Origin of Inequality among Men, where
he sustained the irrational paradox that men
are happier in a state of nature than under the
laws of civilization. This was followed by a
later work on the Social Contract. In both the
sentiment of Equality is invoked against abuses
of society, and language is employed tending far
beyond Equality in Civil and Political Rights.
The conspicuous position since awarded to the
speculations of Rousseau and their influence
in diffusing this sentiment would make this
sketch imperfect without allusion to him ; but
he taught men to feel rather than to know,
and his words have more of inspiration than
of precision.

The French Revolution was at hand. That
great outbreak for enfranchisement was the
expression of this sentiment. Here it re-
ceived distinct and authoritative enunciation.
In the constitutions of government success-
ively adopted, amid the throes of bloody strug-
gle, the Equality of men was constantly pro-
claimed. Kings, nobles, and all distinctions
of birth passed away before this mighty and
trimpuhant truth.

These Constitutions show the grandeur of
the principle and how it was explained and
illustrated. The Constitution of 1791 in its
first article declares that : "Men are born and
continue free and equal in their rights. ' ' This
great declaration was explained in the sixth
article: "The law is the expression of the
general will. It ought to be the same for all,
whether it protects or punishes. All citizens
being equal in its eyes, are equally admissible
to all dignities, places, and public employments
according to their capacity, and without other
distinction than their virtues and talents. ' ' At
the close of the Declaration of Rights there is
this further explanation: " The National As-
sembly, wishing to establish the French Consti-
tution on principles which it has just acknowl-
edged and declared, abolishes irrevocably the
institutions which bounded liberty and equal-
ity of rights. There is no longer nobility, or
peerage, or feudal rule, or patrimonial justices,
or any titles, denominations and prerogatives
thence derived, or any order of chivalry, or any
corporations or decorations for which proofs
of nobility are required, or which supposed
distinctions of birth, or any other superiority
than that of public functionaries in the dis-
charge of their functions."
' ' There is no longer, for any part of the nation,
or for any individual, any privilege or excep-
tion to the law common to all Frenchmen.''''
[Moniteur, 1791, No. 259.] These diffuse
articles all begin and end in the Equality of
men.

In fitful mood another Declaration of Rights

6

was brought forward by Condorcet February
15, 1793. Here also are fresh inculcations of
Equality. Article first places Equality among
the natural, civil, and political rights of man.
Article seventh declares: "Equality consists
in this, that each can enjoy the same rights. 11
Article eighth: " The law ought to be equal
for all, whether it recompense, or punish, or
repress." Article ninth: "All citizens are
admissible to all public places, employments,
and functions. Free people cannot know other
motives of preference than talents and virtues."
Article twenty-third : ' ' Instruction is the need
of all, and society owes it equally to all its
members." Article thirty-second : " Thereis
oppression when the law violates the natural,
civil, and political rights which it ought to guar-
anty. There is oppression when a law is vio-
lated by public functionaries in its application
to individual facts." \_Moniteur, 1793, No. 49.]
Here again is the same constant testimony,
reenforced by the accompanying report explain-
ing the Constitution, where it is said: "All
political power by inheritance is at the same
time an evident violation of natural equality
and an absurd institution, since it supposes the
inheritance of qualities proper for the discharge
of a public function. Every exception from the
common law made in favor of an individual is
a blow struck at the right of all."* And in
another part of the same report, the sovereignty
of the people, equality among men, the unity
of the Republic "are declared the guiding
principles always present in the formation of
the Constitution. f

Next came the Constitution of June, 1793,
announcing in its second article that the natural
and imprescriptible rights of men are "Equal-
ity, liberty, safety, property." In the next
article we learn precisely what is meant by
Equality when it says, "All men are equal by
nature and before the law.'" (Moniteur, 1793,
No. 178.) So just and captivating was this
definition, which we encounter here for the
first time, that it held its place through all the
political vicissitudes of France, under the Di-
rectory, the Consulate, the Empire, the Restor-
ation, and the Constitutional Government of
Louis Philippe. It was a conquest, which, when
achieved, was never abandoned. Every charter
and constitution certified to it. The charter of
Louis Philippe testifies as follows : ' 'All French-
men are equal before the law, whatever may be
their titles or ranks." Nor was its use confined
to France. It passed into other constitutions,
and Napoleon, who so often trampled on the
rights of Equality, dictated to the Poles the
declaration that all persons are equal before
the law. Thus the phrase is not only French
but continental, although never English.

While recognizing this peculiar form of
speech as more specific and satisfactory than
the statement that all men are born equal, it

*Oondorcet, (Eewes : Tome XII., 336. Exposition dca
Principcs ct dea Mostifs du Plan de Constitution.
tlbid., 413.

is impossible not to be reminded that it finds
a prototype in the ancient Greek language
where, according to Herodotus, "the govern-
ment of the many has the most beautiful name
of wovojxia," or Equality before the law. (Book
3, 80.) Thus, in an age when Equality be-
fore the law was practically unknown, this
remarkable language, by its comprehensive-
ness and flexibility, supplied a single word, not
found in modern tongues, to express an idea
practically recognized only in modern times.
Such a word in our own language, as the sub-
stitute for Equality, might have superseded
criticism to which this declaration is exposed.

EQUALITY UNDER THE CONSTITUTION OF MASSACHU-
SETTS.

The way is now prepared to consider the
nature of Equality, as secured by the Consti-
tution of Massachusetts. The Declaration of
Independence, which followed the French En-
cyclopedia, and the political writings of Rous-
seau, announces among self-evident truths,
" That all men are created equal, and that they
are endowed by the Creator with certain un-
alienable rights; that among these are life,
liberty, and the pursuit of happiness." The
Constitution of Massachusetts repeats the same
truth in a different form, saying, in its first
article : "All men are born free and equal, and
have certain natural, essential, and unalienable
rights, among which may be reckoned the right
of enjoying and defending their lives and liber-
ties." Another article explains what is meant
by Equality, saying, " No man, nor corpora-
tion, or association of men, have any other
title to obtain advantages, or particular and
exclusive privileges, distinct from those of the
community, than ichat arises from the consid-
eration of services rendered to the public; and
this title being in nature neither hereditary nor
transmissible to children, or descendants or
relations by blood, the idea of a man being
born a magistrate, lawgiver, or judge, is ab-
surd and unnatural." This language, in its
natural signification, condemns every form of
inequality in civil and political institutions.

These declarations, though in point ot time
before the ampler declarations of France, may
be construed in the light of the latter. Evi-
dently they seek to declare the same principle.
They are declarations of Bights, and the lan-
guage employed, though general in character,
is obviously limited to those matters within the
design of a declaration of Eights. And per-
mit me to say, it is a childish sophism to
adduce any physical or mental inequality in
argument against Equality of Rights.

Obviously men are not born equal in physical
strength, or in mental capacity ; in beauty of
form or health of body. Diversity or inequal-
ity, in these respects, is the law of creation.
From this difference springs divine harmony.
But this inequality is in no particular incon-
sistent with complete civil and political equality.

The equality declared by our fathers in 1776,
and made the fundamental law of Massachu-

setts in 1780, was Equality before the law. Its
object was to efface all political or civil distinc-
tions, and to abolish all institutions founded
upon birth. "All men are created equal,"
says the Declaration of Independence "All
men are born free and equal," says the Massa-
chusetts Bill of Rights. These are not vain
words. Within the sphere of their influence no
person can be created, no person can be bom
with civil or political privileges not enjoyed
equally by all his fellow-citizens; nor can any
institution be established recognizing any dis-
tinction of birth. Here is the Great Charter
of every human being drawing the vital breath
upon this soil, whatever may be his condition
and whoever may be his parents. He may be
poor, weak, humble, or black; he may be of
Caucasian, Jewish, Indian, or Ethiopian race ;
hemay beof French, German, English, or Irish
extraction, but before the Constitution of Mas-
sachusetts all these distinctions disappear. He
is not poor, weak, humble, or black nor is he
Caucasian, Jew, Indian, or Ethiopian nor is
he French, German, English, or Irish; he is a
Man, the equal of all his fellow men. He is
one of the children of the State, which, like an
impartial parent, regards all its offspring with
an equal care. To some it may justly allot
higher duties, according to higher capacities,
but it welcomes all to its equal, hospitable
board. The State, imitating the divine justice,
is no respecter of persons.

Here nobility cannot exist, because it is a
privilege from birth. But the same anathema
which smites and banishes nobility must also
smite and banish every form of discrimination
founded on birth ;
"Quaruvis ille niger, quamvis tu canclidus esses."

EQUALITY BY LEGISLATION OF MASSACHUSETTS.

The Legislature of Massachusetts, in entire
harmony with the Constitution, has made no
discrimination of race or color in the establish-
ment of Common Schools.

Any such discrimination by the Laws would
be unconstitutional and void. But the Legis-
lature has been too just and generous, too
mindful of the Bill of Rights, to establish any
such privilege of birth. The language of the
statutes is general, and applies equally to all
children, of whatever race or color.

The provisions of the law are entitled, Of
the Public Schools, (Revised Statutes, ch. 23.)
meaning our Common Schools. To these we
must look to ascertain what constitutes a Pub-
lic School. Only those established in conform-
ity with the Law can be legally such. Thpymay,
in fact, be more or less public ; yet, if they do
not come within the terms of the Law, they do
not form a part of the beautiful system of our
Public Schools; they are not Public Schools,
or, as I prefer to call them, Common Schools.
The two terms are used as identical ; but the
latter is that by which they were earliest known,
while it is most suggestive of their comprehen-
sive character. A "common" in law is defined

to be " open ground equally used by many
persons," and the same word when used as an
adjective is defined by lexicographers as " be-
longing equally to many or to the public," thus
implying Equality.

If we examine the text of this statute, we
shall find nothing to sustain the rule of exclu-
sion which has been set up. The first section
provides that in " Every town containing fifty
families, or households, there shall be kept in
each year, at the charge of the town, by a
teacher or teachers of competent ability and
good morals, one school for the instruction of
children in Orthography, Reading, Writing,
English Grammar,Geography,' Arithmetic, and
Good Behavior, for the term of six months,
or two or more such schools for terms of time
that shall together be equivalent to six months. ' '
The second, third, and fourth sections provide
for the number of such schools in other towns
having more than five hundred inhabitants.
There is no language recognizing any discrim-
ination of race or color. Thus in every town
the schools, whether one or more, are " for
the instruction of children " generally; not
children of any particular class, or race, or
color, but children meaning the children of
the town where the schools are.

The fifth and sixth sections provide a school,
in certain cases, where additional studies are
to be pursued, " which shall be kept for the
benefit of all the inhabitants of the town."
The language here recognizes no discrimina-
tion among the children, but seems directly to
exclude it.

In conformity with these sections is the
peculiar phraesology of the memorable Colo-
nial law of 1647, founding Common Schools,
" to the end that learning be not buried in the
graves of our forefathers." This law obliged
towns having fifty families, " forthwith to ap-
point one" within their limits "to teach all
such children as shall resort to him, to write
and read." (Ancient Charters, 186.) Here
again there is no discrimination among the
children. All are to be taught.

On this legislation the Common Schools of
Massachusetts have been reared. The clause
of the Revised Statutes (chap. 23) and the
statute (1838, chap. 154,) appropriating small
sums, in the nature of a contribution, from the
school fund for the support of common schools
among the Indians, do not interfere with this
system. These have the anomalous character
of all .the legislation concerning the Indiana.
It does not appear, however, that separate
schools are established by law among the In-
dians, nor that the Indians are in any way
excluded from the Common Schools in their
neighborhood.

I conclude on this head, that there is but one
Public School in Massachusetts. This is the
Common School equally free to all the inhabit-
ants. There is nothing establishing an exclu-
sive or separate school for any particular class,
rich or poor, Catholic or Protestant, white or

8

black. In the eye of the law there is but one
class, where all interests, opinions, conditions,
and colors commingle in harmony excluding
none, comprehending all.

EQUALITY UNDER JUDICIAL DECISIONS.

The Courts of Massachusetts, in harmony
with the Constitution and the Laws, have never
recognized any discrimination founded on race
or color, in the administration of the Common
Schools; but have constantly declared the
equal rights of all the inhabitants.

There are only a few decisions bearing on this
subject, but they all breathe one spirit. The
sentiment of Equality animates them. In the
case of Commonwealth vs. Davis, (6 Mass. R.,
146,) while declaring the equal rights of all
the inhabitants, in both grammar and district
schools, the Court said :

" The schools required by the statute are to be
maintained for the benefit of the whole town, as it
is the wise policy of the law to give all the inhabitants
equal privileges for the education of their children in
the Public Schools. Nor is it in the power of the
majority to deprive the minority of this privilege."
* * * * "Every inhabitant of the town
lias a right to participate in the benefits of both de-
scriptions of schools, and it is not competent for a
town to establish a grammar school for the benefit
of one part of the town to the exclusion of the other,
although the money raised for the support of schools
may be in other respects fairly apportioned.''

Here is Equality from beginning to end.

In the case of Withington vs. Eveleth, (7
Pick., 106,) the Court said they " were all satis-
fied that the power given to towns to determine
and define the limits of school districts can be
executed only by a geographical division of
the town for that purpose." A limitation of
the district merely personal was held invalid.
This same principle was again recognized in
Perry vs. Doe, (12 Pick. R,. 213.) where the
Court say, " Towns, in executing the power to
form school districts., are bound so to do it as
to include every -inhabitant in some of the dis-
tricts. They cannot lawfully omit any and thus
deprive them of the benefits of our invaluable
system of free schools.' : ' Thus at every point
the Courthas guarded the Equal Rights of all.

The Constitution, the legislation, and the
judicial decisions of Massachusetts have now
been passed in review. We have seen what is
contemplated by the Equality secured by the
Constitution; also what is contemplated by the
system of Common Schools, as established by
the laws of the Commonwealth and illustrated
by decisions of the Supreme Court. _ The way
is prepared to consider the peculiarities in the
present case, and to apply the principle thus
recognized in Constitution, in Laws, and judi-
cial decisions.

SEPARATE SCHOOLS INCONSISTENT WITU EQUALITY.

It is easy to see that the exclusion of colored
children from the Public Schools is a constant
inconvenience to them and their parents, which
white children and white parentsarenot obliged
to bear. Here the facts are plain and un-
answerable, showing a palpable violation of

Equality. The black and white are not equal
before the laic. I am at a loss to understand
how anybody can assert that they are.

Amongthe regulations of the Primary School
Committee is one to this effect: " Scholars to
go to the school nearest their residences. Ap-
plicants for admission to our schools (with the
exception and provision referred to in the pre-
ceding rule) are especially entitled to enter the
schools nearest to their places of residence."
The exception here is "of those for whom
special provision has been made" in separate
schools ; that is, colored children.

In this rule without the unfortunate excep-
tion is part of the beauty so conspicuous
in our Common Schools. It is the boast of
England that, through the multitude of courts,
justice is brought to every man's door. It
may also be the boast of our Common Schools,
that, through the multitude of schools, educa-
tion in Boston is brought to every white man's
door. But it is not brought to every black
man's door. He is obliged to go for it to
travel for it to walk for it often a great dis-
tance. The facts in the present case are not
so strong as those of other cases within my
knowledge. But here, the little child, only
five years old, was compelled, if attending the
nearest African School, to go a distance of two
thousand one hundred feet from her home,
while the nearest Primary School was only nine
hundred feet, and, in doing this, she would
pass by no less than five different Primary
Schools, forming part of our Common Schools,
and open to white children, all of which were
closed to her. Surely this is not Equality
before the law.

Such a fact is sufficient to determine this
case. If it be met by the suggestion that the
inconvenience is trivial, and such as the law
will not notice, I reply that it is precisely such
as to reveal an existing inequality, and there-
fore the law cannot fail to notice it. There is
a maxim of the illustrious civilian Dumoulin,
a great jurist of France, which teaches that
oven a trivial fact may give occasion to an im-
portant application of the law. Moclica enini
circumstanlia facii inducit magnam juris di-
versitatem. Also from the best examples of
our history we learn that the insignificance of
a fact cannot obscure the grandeur of the prin-
ciple at stake. It was a paltry tax on tea laid
by a Parliament where they were not repre-
sented that aroused our fathers to the struggles
of the Revolution. They did not feel the incon-
venience of the tax ; but they felt its oppression.
They went to war for a principle. Let it not be
said, then, that in the present case the inconven-
ience is too slight to justify the appeal I make
in behalf of colored children for Equality be-
fore the law.

Looking beyond the facts of this case it is
apparent that the inconvenience from the ex-
clusion of colored children is such as to affect
seriously the comfort and coudition of the
African race in Boston. The two Primary

9

schools open to them are in Belknap street and
in Sun court. I need not add that the whole
city is dotted with schools open to white chil-
dren. The colored parents, anxious for the
education of their children, are compelled to
live in the neighborhood of the schools, to
gather about them as in Eastern countries
people gather near a fountain or a well. The
liberty of choosing their homes, which belongs
to the white man, is not theirs. Inclination,
or business, or economy may call them to an-
other part of the city ; but they are restrained
for their children's sake. There is no such
restraint upon the white man, for he knows
that wherever in the city inclination, or busi-
ness, or economy may call him, there will be
a school open to his children near his door.
Surely this is not Equality before the law.

If a colored person, yielding to the necessi-
ties of position, removes to a distant part of
the city, his children may be compelled daily,
at an inconvenience which will not be called
trivial, to walk a long distance for the advan-
tages of the school. In our severe winters this
cannot be disregarded in the case of children
so tender in years as those of the Primary
schools. There is a peculiar instance of hard-
ship which has come to my knowledge. A
respectable colored parent became some time
since a resident at East Boston, separated
from the mainland by water. Of course there
are Common Schools at East Boston, but none
open to colored children. This parent was
obliged to send his children, three in number,
daily across the ferry to the distant African
School. The tolls amounted to a sum which
formed a severe tax upon a poor man, while
the long way to travel was a daily tax upon the
time and. strength of his children. Every toll
paid by this parent, as every step taken by the
children, testifies to that inequality which I
now arraign.

This is the conduct of a colored parent. He
is well deserving of honor for his generous
efforts to secure the education of his children.
As they grow in knowledge, they will rise and
call him blessed ; but at the same time they
will brand as accursed that arbitrary discrim-
ination of color in the Common Schools of Bos-
ton which rendered it necessary for their father,
out of small means, to make such sacrifices
for their education.

Here is a grievance, which, independent of
any stigma from color, calls for redress. It is
an inequality which the Constitution and the
Laws of Massachusetts repudiate. But it is
not on the ground of inconvenience only that
it is odious. And this brings me to the next
point.

SEPARATE SCHOOLS ARE IN NATURE OF CASTE.

The separation of children in the Schools, on
account of race or color, is in the nature of
Caste, and, on this account, a violation of
Equality. The case shows expressly that the
child was excluded from the school nearest to
her dwelling the number in the school at the

time warranting her admission " on the sole
ground of* color." The first Majority Report
presented to the School Committee, and men
tioned in the statement of facts, presents the
grounds of this discrimination with more full-
ness, saying, " It is one of races, not of color,
merely. The distinction is one which the Al-
mighty has seenfittoestablish, and it is founded
deep in the physical, mental, and moral na-
tures of the two races. No legislation, no
social customs, can efface this distinction."
Words could not be chosen more apt than these
to describe the heathenish relation of Caste.

This term is from the Portuguese casta, which
signifies family, breed, race, and is generally
used to designate any hereditary distinction,
particularly of race. It is most often applied
in India; and it is there that we must go to
understand its full force. A recent English
writer says that it is " not only a distinction
by birth, but is founded on the doctrine of an
essentially distinct origin of the different races,
which are thus unalterably separated. (Rob-
erts on Caste, p. 134.) This is the very ground
of the Boston School Committee.

This word is not now for the first time ap-
plied to the distinction between the white and
black races. Alexander von Humboldt, speak-
ing of the negroes in Mexico, characterizes
them as a Caste. Following him, a recent
political and juridical writer of France uses
the same term to denote, not only the distinc-
tions in India, but those of our own country, -"
especially referring to the exclusion of colored
children from the Common Schools, as among
"the humiliating and brutal distinctions" by
which their Caste is characterized. It is, then,
on authority and reason alike, that we apply
this term to the hereditary distinction on ac-
count of color now established in the Schools
of Boston.

Boston is set on a hill, and her schools have
long been the subject of observation, even in
this respect. As far back as the last century
the French Consul there made a report on our
"separate" school, 1 and de Tocqueville in his
masterly work testifies with evident pain that
the same schools do not receive the children
of the African and European. 2 All this is
only a reproduction of the Cagots in France,
who for generations were put under the ban
there relegated to a corner of the church
separate from the rest, and, even in the last rest-
ing place, where all are equal, these wretched
people are separated by a line of demarkation
from the rest, (a) The Cagots are called an
"accursed race," and this language may be
applied to the African under our laws. Strange
that, here under a State Constitution declaring
the Equality of all men, we should follow the

*1. Charles Comte, Traite de Legislation, torn .4, pp.
129, 445.

1 Grt'goiro, De la Litterature des Negres, p. 177.

2 De Tocqueville. Democracy in America, vol. II,
p. 461, chap. XVIII, I 2.

a Francisque Michel, Histoire des Races Maudites,
torn. 1, p. 3.

10

worst precedents and establish among us a
Caste.

Seeing the discrimination in this light, we
learn to appreciate its true character. In In-
dia, Brahmins and Sudras, from generation to
generation, were kept apart. If a Sudra pre-
sumed to sit upon a Brahmin's carpet his pun-
ishment was banishment. With similar inhu-
manity here, the black child, who goes to sit
on the same benches with the white child, is
banished, not from the country, but_ from the
school. In both cases it is the triumph of
Caste. But the offense is greater with us, be-
cause, unlike the Hindoos, we acknowledge
that men are bom equal.

So strong is my desire that the court should
feel the enormity of this system, thus legalized,
not by the Legislature, but by an inferior local
board, that I shall introduce an array of wit-
nesses all testifying to the unchristian charac-
ter of Caste, as it appears in India, where it is
most studied and discussed. _ As you join in
detestation of this foul institution, you will
learn to condemn its establishment among our
children.

I borrow these authorities from the work of
Mr. Roberts, to which I have already referred,
Caste opposed to Christianity, published in
London, 1847. Time will not allow me to
make comments. I can only quote the au-
thorities and then pass on.

The eminent Bishop Heber, of Calcutta,
characterizes Caste in these forcible terms :

"It is a system which tends, mors than any else the
devilhas yet invented, to destroy the feelings of general
benevolence, and to make nine tenths of mankind the
hopeless slaves of the remainder."

B.ut this is the very system now in question
here. Bishop Wilson, also of Calcutta, the
successor of Heber, says :

"The Gospel recognizes no such distinctions as
those of Castes, imposed by a heathen usage, bearing
in some respects a supposed religious obligation,
condemning those in the lower ranks to perpetual
abatement, placing an immovable barrier againstall
general advance and improvement in society, cutting
asunder the bonds of human fellowship on the one
hand, and preventing thoso of Christian love on the
other. Such distinctions, I say, the Gospel does not
recognize. On the contrary, it teaches us that God
'hath made of one blood all the nations of men.' "

The same sentiment is echoed by Bishop
Corrie, of Madras :

"Thus Caste sets itself up as a judge of our Saviour
himself. Ilis command is, 'Condescend to men of
low estate. Esteem others better than yourself.'
'No,' says Caste, 'do not commune with low men;
consider yourself of high estimation. Touch not,
taste not, handle not.' Thus Caste condemns the
Saviour."

Here is the testimony of Rev. Mr. Rhenius,
a zealous and successful Missionary:

" I have found Caste, both in theory and practice,
to be diametrically opposed to the Gospel, which
inculcates love, humility, and union; whereasCaste
teaches the contrary. It is a fact, in those entire
congregations where Caste is allowed, the spirit of
the Gospel does not enter; whereas in those from
Which it is excluded, we see the fruits of the Gospel
spirit."

Another Missionary, Rev. C. Mault, follows

in similar strain:

"Caste must be entirely renounced; for it is a
noxious plant, by the side of which the graces cannot
grow; for facts demonstrate, that where it has been
allowed, Christianity has never flourished."

So also does the Rev. John McKenny, a

Wesleyan Missionary:

"I have been upward of twelve years in India,
and have directed much of my attention to the sub-
ject of Caste, and am fully of opinion, that it is alto-
gether contrary to the nature and principles of the
Gospel of Christ, and therefore ought not be admitted
into the Christian Church."

So also the Rev. R. S. Hardy, a Wesleyan

Missionary, and author of "Notices of the

Holy Land:"

" The principle of Caste I consider so much at vari-
ance with the spirit of the Gospel, as to render im-
possible, where its authority is acknowledged, the
exercise of many of the most beautiful virtues of
our holy religion."

So also the Rev. D. J. Gorgerly, of the

same Society :

" I regard the distinction of Caste, both in its prin-
ciples and operations, as directly opposed to vital
godliness, and consequently inadmissible into the
Church of Christ."

So also the Rev. W. Bridgnall, of the same
Society :

"I perfectly agree with a writer of respectable
authority, in considering the institution of Caste as
the most formidable engine that was ever invented
for perpetuating the subjugation of men ; so that, as
a friend of humanity only, I should feel myself bound
to protest against and oppose it; but in particular
as a Christian, I deem it my obvious and imperative
duty whollv to discountenance it, conceiving it to be
utterly repugnant to all the principles and the whole
spirit of Christianity. He who is prepared to support
the system of Caste, is. in my judgment, neither a
true friend of man, nor a consistent follower of
Christ."

So also the Rev. S. Aliens, of the same

Society :

"During a residence of more than nine years in
Ceylon, I have had many opportunities of witnessing
the influence of Caste on the minds of the natives;
and I firmly believe it is altogether opposed to-tho
spirit of Christianity ; and it appears to mo that its
utter and speedy extinction cannot but be desired
by every minister of Christ."

So also Rev. R. Stoup, of the same Society:

"From my own personal observation, during a
four-years' residence in Ceylon, I am decidedly of
opinion that Caste is directly opposed to the spirit of
Christianity, and, consequently, ought to be discour-
aged in every possible way."

I conclude these European authorities with
the fulmination of Rev. Joseph Roberts, author
of the work on Caste :

' ' We must, in everyplace, witness against it, and shoio
that even Government itself is nurturing a tremendous evil,
that through its heathen managers it is beguiled into a
course which obstructs the progress of civilizat ion, which
keeps in repulsion our kindlier feelings, which cre-
ates and nurses distinctions the most alien to all the
cordialities of life; and which, more than any other
thing, makes the distance so immense betwixt the
governed and governors."

There is also the testimony of native Hindoos
converted to Christianity who denounce Caste
as Jefferson denounced the whole brood of
slavery. Listen to the voice of a Hindoo:

"Caste is the stronghold of that principle of pride

11

which makes a man think of himself more highly
than he ought, to think. Casteinfuses itself into and
forms the very essence of pride itself."

Another Hindoo speaks as follows:

"I therefore regard Caste as opposed to the main
scope, principles, and doctrines of Christianity ; for,
either Caste must be admitted to bo true and of divine
authority, or Christianity must be so admitted. W
you admit Caste to be true, the whole fabric of Chris-
tianity mustcoine down ; for the nature of Caste and
its associations destroy the first principles of Chris-
tianity. Caste makes distinctions among creatures
where God has made none."

Another native expresses himself thus :

" When God made man, his intention was, not that
they should be divided, and hate one another, and
show contempt, and think more highly of themselves
than others. Caste makes a man think that he is
holier than another and that he has some inherent
virtue which another has not. It makes him despise
all those that are lower than himself, in regard to
Caste, which is not the design of God."

Still another native uses this strong language :

"Yes, we regard Caste as part and parcel of idola-
try, and of all heathen abominations, because it is
in many ways contrary to God"s word, and directly
contrary to God himself."

I hope that I have not occupied too much
time with this testimony, which is strictly in
point. There is not a word which is not plainly
applicable to the present case. The witnesses
are competent and in their words, as in a
mirror, may be seen the true character of the
discrimination which I now arraign before this
court.

It will be vain to say that this distinction,
though seeming to be founded on color, is in
reality founded on natural and physical peculi-
arities, independent of color. Whatever they
may be, there are peculiarities of race, and any
discrimination on this account constitutes the
relation of Caste. Disguise it as you will, it is
nothing but this hateful, irreligious institution.
But the words Caste and Equality are contra-
dictor}'. They mutually exclude each other.
Where Caste is, there cannot be Equality.
Where Equality is. there cannot be Caste.

Unquestionably there is a distinction between
the Ethiopian and the Caucasian. Each re-
ceived from the hand of God certain charac-
teristics of color and form. The two may not
readily intermingle, although we are told by
Homer that Jupiter

"did not disdain to graco
The feast of Ethiopia's blameless race."

One may be uninteresting or offensive to the
other, precisely as individuals of the same race
and color may be uninteresting or offensive to
each other. But this distinction can furnish
no ground for any discrimination before the
law.

We abjure nobility of all kinds ; but here is
a nobility of the skin. We abjure all hered-
itary distinctions ; but here is an hereditary dis-
tinction, founded not on the merit of the an-
cestor, but on his color. We abjure all privileges
from birth ; but here is a privilege which de-
pends solely on the accident whether an ances-
tor is black or white. We abjure all inequality
before the law : but here is an inequality which

touches not an individual, but a race. We
revolt at the relation of Caste ; but here is a
Cash! which is established under a Constitution
declaring that all men are bom equal.

Condemning Caste and inequality before the
law, the way is prepared to consider more
particularly the powers of the School Commit-
tee. Here it will be necessary to enter into
details.

COMMITTEE HAVE NO POWER TO DISCRIMINATE ON

ACCOUNT OF COLOR.

The Committee of Boston charged with the
superintendence of the Common Schools have
no power to make any discrimination on account
of race or color.

It has been seen already that this power is
inconsistent with the Constitution and Laws of
Masssachusetts, and with adjudications of the
Supreme Court. The stream cannot rise higher
than the fountain-head ; and if there be nothing
in these elevated sources from which this power
can be derived it must be considered a nullity.
Having seen that there is nothing, I might here
stop ; but I wish to show the shallow origin of
this pretension.

Its advocates, unable to find it among express
powers conferred upon the School Committee,
and forgetful of the Constitution, where "either
it must live or bear no life," place it among
implied or incidental powers. The Revised
Statutes (cap. 23, 10) provide for a School
Committee "who shall have a general charge
and superintendence of all the Public Schools"
in their respective towns. Another section (15)
provides that the " Committee shall determine
the number and qualifications of the scholars
to be admitted into the school kept for the use
of the whole town." These are all the clauses
conferring powers cm the Committee.

From these no person will imply a power to
defeat a cardinal principle of the Constitution.
It is absurd to suppose that the Committee in
general charge and superintendence of schools,
and in determining the number and qualifica-
tions of scholars, may ingraft upon the schools
a principle of inequality, not only unknown to
the Constitution and Laws, but in defiance of
their letter and spirit. In the exercise of
these powers they cannot put colored children
to personal inconvenience greater than that
of white children. Still further, they cannot
brand a whole race with the stigma of infe-
riority and degradation, constituting them into
a Caste. They cannot in any way violate that
fundamental right of all citizens, Equality
before the laiv. To suppose that they can do
this would place the Committee above the
Constitution. It would enable them, in the
exercise of a brief and local authority, to
draw a fatal circle, within which the Constitu-
tion cannot enter ; nay, where the very Bill
of Rights becomes a dead letter.

In entire harmony with the Constitution, the
law says expressly what the Committee shall
do. Besides the general charge and superin-
tendence, they shall " determine the number

12

and the qualifications of the scholars to be
admitted into the schools;" thus, according
to a familiar rule of interpretation, excluding
other powers: Mentio unius est exclusio alte-
rius. The power to determine the number is
easily executed, and admits of no question.
The power to determine the qualifications,
though less simple, must be restrained to age,
sex, and fitness, moral and intellectual. The
fact that a child is black, or that he is white,
cannot of itself be a qualification or a dis-
qualification. Not to the skin can we look for
the criterion of fitness.

It is sometimes pretended that the Committee,
in the exercise of their power, are intrusted with
a discretion under which they may distribute,
assign, and classify all children belonging to
the schools according to their best judgment,
making, if they think proper, a discrimination
of race or color. Without questioning that they
are intrusted with a discretion, it is outrageous
to suppose that their discretion can go to this
extent. The Committee can have no discretion
which is not in harmony with the Constitution
and Laws. Surely they cannot in their mere
discretion nullify a sacred and dear-bought
principle of Human Rights expressly guaran-
tied by the Constitution.

REGULATIONS OF COMMITTEE MUST BE REASONABLE.

Still further and here I approach a more
technical view of the subject it is an admitted
principle that the regulations and by-laws of
municipal corporations must be reasonable, or
they are inoperative and void. This has been
recognized by the Supreme Court in two different
cases, Commonwealth vs. Worcester, (4 Pick.
R.,4G2;) inVardine'scase, (6 Pick., 187.) In
another case, City of Boston vs. Jesse Shaw,
(1 Met., 130,) it was decided that a by-law of
Boston prescribing a particular form of contri-
bution toward the expenses of making the
common sewers was void for inequality and
unreasonableness.

Assuming that this principle is applicable to
the School Committee, their regulations and
by-laws must be reasonable. Their discretion
must be exercised in a reasonable manner.
And this is not what the Committee or any
other body of men think reasonable, but what
13 reasonable in the eye of the lav/. It must
be legally reasonable. It must be approved
by the reason of the Law.

Here we are brought once more in another
form to the question of the discrimination on
account of color. Is this legally reasonable?
Is it reasonable in the exercise of a just dis-
cretion to separate descendants of the African
race from white children merely in consequence
of descent? Passing over those principles of
the Constitution and those provisions of Law
which of themselves decide the question, con-
stituting as they do the highest reason, but
which have been already amply considered,
look for a moment at the educational system
of Massachusetts, and it will be seen that prac-
tical! v no discrimination of color is made bv

Law in any part of it. A descendant of the
African race may be Governor of the Com-
monwealth, and as such, with the advice and
consent of the Council, may select the Board
of Education. As Lieutenant Governor hemay
be ex officio a member of the Board. He may
be Secretary of the Board, with the duty im-
posed on him by law of seeing " that all chil-
dren in this Commonwealth who depend upon
Common Schools for instruction may have the
best education which those schools can be made
to impart." He may be member of any School
Committee or teacher in any Common School
of the State. As legal voter he can vote in the
selection of any School Committee.

Thus, in every department connected with
our Common Schools, throughout the whole
hierarchy of their government, from the very
head of the system down to the humblest usher
in the humblest Primary school, and to the
humblest voter, there is no distinction of color
known to the Law. It is when we reach the
last stage of all, the children themselves,
that the beautiful character of the system is
changed to the deformity of Caste, as, in the
picture of the ancient poet, what above was
a lovely woman terminated below in a vile,
unsightly fish. And all this is done by the Com-
mittee, with more than necromantic power, in
the exercise of a mere discretion.

It is clear that the Committee may classify
scholars, according to age and sex, for the
obvious reasons that these distinctions are in-
offensive and especially recognized as legal in
the law relating to schools. (Revised Statutes,
c. 23, $G3.) They may also classify scholars,
according to moral and intellectual qualifica-
tions, because such a power is necessary to the
government of schools. But the Committee
cannot assume, a priori, and withoutindividual
examination, that an entire race are so deficient
in proper moral and intellectual qualifications
as to justify the degradation of all to a class by
themselves. Such an exercise of discretion
must be unreasonable, and therefore illegal.

SEPARATE SCHOOL NOT AN' EQUIVALENT FOR COMMON
SCHOOL.

But it is said that the Committee, in thus
classifying the children, have not violated any
principle of Equality, inasmuch as they pro-
vide a school, with competent instructors, for
colored children, where they have advantages
equal to those provided for white children. It
is argued that in excluding colored children
from Common Schools open to white children,
the Committee furnish an equivalent.

To this there are several answers. I shall
touch them only briefly, as the discussion,
through which we have now traveled, substan-
tially covers the whole ground.

1. The separate school for colored children
is not one of the schools established by the
law relating to Public Schools. (Revised Stat-
utes, c. 23.) It is not a Common School. As
such, it has no legal existence, and, therefore,
cannot be a legal equivalent. In addition to

o

what has been already said, bearing on this
head, 1 coll attention to one other aspect. It
has been decided that a town can execute its
power to form a School District_ only by a
geographical division of its territory ; that
there cannot be what the Court call a personal
limitation of the district, and that certain indi-
viduals cannot be selected and sea off by them-
selves into a District. {Perry vs. Dover, 12
Pick., 213.) The admitted effect of this decis-
ion is to render a separate school for colored
children illegal and impossible in towns divided
into districts. They are so regarded in Salem,
Nantucket, New Bedford, and in other towns
of this Commonwealth. The careful opinion
of a member of this Court, who is not sitting
in this case, given while at the bar, (Hon.
Richard Fletcher,) and extensively published,
is considered as practically settling this point.

But there cannot be one law for the country
and one for Boston. It is true that Boston is
not divided strictly into geographical districts.
In this respect its position is anomalous. But
if separate colored schools are illegal and im-
possible in the country, they must be illegal
and impossible in Boston. It is absurd to
suppose that this city failing to establish School
Districts and treating all its territory as a single
district, should be able to legalize a Caste
school, which otherwise it could not do. Bos-
ton cannot do indirectly what other towns can-
not do directly.

This is the first answer to the allegation of
equivalents.

2. The second is that, in point of fact the
separate school is not an equivalent. We have
already seen that it is the occasion of incon-
venience to colored children, which would not
arise if they had access to the nearest common
schools, besides compelling parents to pay an
additional tax, and inflicting upon child and
parent the stigma of Caste. Still further, and
this consideration cannot be neglected, the
matters taught in the two schools may be

Srecisely the same ; but a school exclusively
evoted to one class, must differ essentially in
spirit and character from that Common School
known to the lav/, where all classes meet to-
gether in Equality. It is a mockery to call it
an equivalent.

3. Butthereisyetnnotheranswer. Admitting
that it is an equivalent, still the colored chil-
dren cannot be compelled to take it. Their
rights are J-Jqttcdity before the laiv ; nor can
they be called to renounce one jot of this. They
have an equal right with white children to the
Common Schools. A separate school, though
well endowed, would not secure to them that
precise Equality which they would enjoy in
the Common Schools. The Jews in Rome are
confined to a particular district called the
Ghetto, and in Frankfort to a district known as
the Jewish Quarter. It is possible that their
accommodations are as good as they would bo
able to occupy if left free to choose throughout
Rome and Frankfort; but this compulsory seg-

regation from the mass of citizens is of itself
an inequality which we condemn. It is a
vestige of ancient intolerance directed against
a despised people. It is of the same character
with the separate schools in Boston.

Thus much for the doctrine of equivalents
as a substitute for equality.

DISASTROUS CONSEQUENCES OF TOWER TO HAKE SEP-
ARATE SCHOOLS.

In determining that the Committee have no
power to make this discrimination, we are
strengthened by another consideration. If
the power exists in the present case it cannot
be restricted to this alone. The Committee
may distribute all the children into classes,
according to mere discretion. They may estab-
lish a separate school for Irish or Germans,
where each may nurse an exclusive nationality
alien to our institutions. They may separate
Catholics from Protestants, or, pursuing their
discretion still further, may separate different
sects of Protestants, and establish one school
for Unitarians, another for Presbyterians,
another for Baptists, and another for Method-
ists. They may establish a separate school
for the rich, that the delicate taste of this
favored class may not be offended by the hum-
ble garments of the poor. They may exclude
the children of mechanics, and send them to
separate schools. All this, and much more,
can be done in the exercise of that high-handed
power which makes a discrimination on account
of race or color. The grand fabric of our
Common Schools, the pride of Massachusetts
where, at the feet of the teacher, innocent
childhood should come, unconscious of all dis-
tinctions from birth where the equality of the
Constitution and of Christianity should be in-
culcated by constant precept and example
will be converted into a heathen system of
proscription and Caste. We shall then have
many different schools, representatives of as
many different classes, opinions, and preju-
dices ; but we shall look in vain for the true
Common School of Massachusetts. Let it not
be said that there is little danger thaf any
Committee will exercise a discretion to this
extent. They must not be intrusted with the
power. Here is the only safety worthy of a
free people.

BY-LAW VOID.

The Court will declare the by-law of the
School Committee unconstitutional and illegal,
although there are no express words of pro-
hibition in the constitution and laws.

It is hardly necessary to say anything in sup-
port of this proposition. Slavery was abolished
in Massachusetts, under the declaration of
rights in our Constitution, without any specific
words of abolition in that instrument, or in any
subsequent legislation. (Commonwealth vs.
Aves, 18 Pick. R., 210.) The same words,
which are potent to destroy slavery, must be
equally potent against any institution founded
on inequality or Caste. The case of Boston
vs. Shaw, (1 Metcalf, 130,) to which reference

14

has been already made, where a by-law of the
city was set aside as unequal and unreasonable,
and therefore void, affords another example of
the power which I now invoke. But author-
ities are not needed. The words of the Con-
stitution are plain, and it will be the duty of
the Court to see that they are applied to the
discrimination now in question.

The Court might justly feel delicacy if they
were called to revise a law of the Legislature.
But it is simply the action of a local commit-
tee that they are to overrule. They may also
be encouraged by the circumstance, that it is
only to the Schools of Boston that their
decision can be applicable. Already the
other towns have voluntarily banished Caste.
Banishing it from the schools of Boston, the
Court will bring them into much- desired har-
mony with the schools of other towns, and
with the whole system of Common Schools. I
am unwilling to suppose that there can be
any hesitation or doubt. If any should arise,
there is a rule of interpretation which I invoke.
According to familiar practice, every interpret-
ation is made always in favor of life or liberty.
So here, the Court should incline in favor of
Equality, that sacred right which is the com-
panion of these other rights. In proportion
to the importance of this right, will the Court
be solicitous to vindicate and uphold it. And
in proportion to the opposition which it en-
counters from prejudices of society, will the
Court brace themselves to this task. It has
been pointedly remarked by Rousseau, that
"It is precisely because the force of things
tends always to destroy Equality, that the
force of legislation should always tend to
maintain it." (Contrat Social, liv. 2, chap.
11.) In similar spirit, and for the same reason,
the Court should alv/ays tend to maintain
equality.

ORIGIN OP SEPARATE SCHOOLS.

In extenuation of the Boston system, it is
sometimes said that the separation of white
and black children was originally made at the
request of colored parents. This is substan-
tially true. It appears from the interesting letter
of Dr. Belknap, in reply to Judge Tucker's
queries on Slavery in Massachusetts, at the
close of the last century, (4 Mass. Hist. Coll.,
207,) that at that time no discrimination on
account of color existed in the Common Schools
of Boston. t; The same provision," he says,
11 is made by the public for the education of
the children of the blacks, as for those of the
whitee. In this town, the Committee who super-
intend the free schools have given in charge
to the schoolmasters to receive and instruct
black children as well as white." Dr. Bel-
knap adds that he had not heard of more
than three or four who took advantage of this
privilege, though the blacks in Boston proba-
bly exceeded one thousand. It is to be feared
that the inhuman bigotry of Caste sad relic
of the servitude from which they had just
escaped! was at this time too strong to allow

colored children kindly welcome in the free
schools, and that, from timidity and ignorance,
they hesitated to take a place on the same
benches with the white children. Perhaps the
prejudice was so inveterate that they could not
venture to assert their rights. In 1800 a peti-
tion from sixty six colored persons was pre-
sented to the School Committee, requesting the
establishment of a school for their benefit.
Private munificence came to the aid of the city,
and the present system of separate schools was
brought into being.

These are interesting incidents belonging to
the history of the Boston Schools, but they
cannot in any way affect the rights of colored
people or the powers of the Committee. These
rights and these powers stand on the Constitu-
tion and Laws. Without adopting the sugges-
tion of Jefferson, that one generation cannot
by legislation bind its successors, all must agree
that the assent of a few to an unconstitutional
and illegal course nearly half a century ago,
when their rights were imperfectly understood,
cannot alter t'he Constitution and the Laws so
as to bind their descendants forever in the thrall
of Caste. Nor can the Committee derive from
this assent, or from any lapse of time, powers
in derogation of the Constitution and the Rights
of Man.

It is clear that the sentiments of the colored
people have now changed. The present case,
and the deep interest which they manifest in it,
thronging the court to hang on this discussion,
attest the change. With increasing knowledge
they have learned to know their rights and feel
the degradation to which they are doomed.
Their present effort is the token of a manly
character which this Court will cherish and
respect. The spirit of Paul now revives in
them, even as when he cried, " I am a Roman
citizen."

EVILS OF SEP ARTE SCHOOLS.

But it is said that these separate schools are
for the benefit of both colors and of the Public
Schools. In similar spirit Slavery is some-
times said to be for the benefit of master and
slave and of the country where it exists.
There is a mistake in the one case as great as
in the other. This is clear. Nothing unjust,
nothing ungenerous can be for the benefit
of any person or anything. From some seem-
ing selfish superiority, or from the gratified
vanity of class, short-sighted mortals may hope
to draw permanent good ; but even-handed
justice rebukes these efforts and redresses the
wrong. The whites themselves are injured by
the separation. Who can doubt this? With
the law as their monitor they are taught to
regard a portion of the human family, children
of God, created in His image, coequalsin His
love, as a separate and degraded class ; they
are taught practically to deny that grand reve-
lation of Christianity, the Brotherhood of
Man. Hearts while yet tender with childhood
are hardened and ever afterward testify to this
legalized uncharitableness. Nursed in the

15

sentiment of Caste, receiving it with the ear-
liest food of knowledge, they are unable to
eradicate it from their natures, and then
weakly and impiously charge upon our Heav-
enly Father the prejudice derived from an
unchristian school. Th characters are de-
based, and they becom 3 fit for the duties
of citizenship.

The Helots of Span bliged to intoxi-

cate themselves tha pie they might

teach the deform i\ temperance. Thus

sacrificing one cla6S to Lhe'other both were
degraded the i rtan and the

abased Helot. 1 jmmittee of Bos-

ton act with a s' Jged injustice

in sacrificing colored cl < the prejudice

or fancied advant

A child should ' n wickedness,

and, as he is yet ;: ipressions, to

shun wicked men. s right, when

speaking of a person morally wrong, false, and
unjust, he calls k and warns against

him :

"Hie niger est, hu 1, Romane, caveto."
The Boston Committee adopt the warning,
but apply it not to the black in heart, but the
black in skin. They forget the admonition ad-
dressed to the prophet: "But the Lord said
unto Samuel, look not on his countenance, for
the Lord seeth not as man seeth ; for man
looketh at the outward appearance, but the
Lord looketh at the heart." (1 Samuel, chap.
16, v. 7.) The Committee look only on the
outward appearance without looking at the
heart, and then fancy that they are doing right!

Who can say that this does not injue the
blacks? Theirs, in its best estate, is an un-
happy lot. A despised class, blasted by preju-
dice and shut out from various opportunities,
they feel this proscription from the Common
Schools as a peculiar brand. Beyond this, it
deprives them of those healthful animating in-
fluences, which would come from participation
in the studies of their white brethren. It adds
to their discouragements. It widens their sep-
aration from the community, and postpones
that great day of reconciliation which is sure
to come.

The whole system of Common Schools suffers
also. It is a narrow perception of their high
aim, which teaches that they are merely to fur-
nish an equal amount of knowledge to all, and,
therefore, provided all be taught, it is of little
con^-cpic-nce where, and in what company.
The law contemplates not only that all shall
be taught, but that all shall be taught together.
They are not only to receive equal quantities
of knowledge, but all are to receive it in the
same way. All are to approach the same com-
mon fountain together; nor can there be any
exclusive source for any individual or any class.
The school is the little world where the child
is trained for the larger world of life. It is
the microcosm preparatory to the macrocosm,
and, therefore, it must cherish and develop the
virtues and the sympathies needed in the larger

world. And since, according to our institu-
tions, all classes, without distinction of color,
meet in the performance of civil duties, so
should they all, without distinction of color,
meet in the school beginning there those
relations of Equality which Constitution and
Laws promise to all.

As the State derives strength from the unity
and solidarity of its citizens without distinc-
tion of class, so the school derives strength
from the unity aud solidarity of all classes
beneath its roof. In this way the poor, the
humble, and the neglected share not only the
companionship of the more favored, but enjoy
also the protection of their presence, which
draws toward the school a more watchful super-
intendence. A degraded or neglected class, if
left to themselves, will become more degraded
or neglected. "To him that hath shall be
given;" and the world, true to these words,
turns from the poor and outcast to the rich and
fortunate. Happily our educational system, by
the blending of all classes, draws upon the
whole school that attention which is too gen-
erally accorded only to the favored few, and
thus secures to the poor their portion of the
fruitful sunshine. But the colored children,
placed apart in separate schools, are deprived
of this peculiar advantage.

Nothing is more clear than that the welfare
of classes, as well as of individuals, is promoted
by mutual acquaintance. The French and
English, for a long time regarded as natural
enemies, have at last, from more intimate
communion, found themselves natural friends.
Prejudice is the child of ignorance. It is sure
to prevail where people do not know each other.
Society and intercourse are means established
by Providence for human improvement. They
remove antipathies, promote mutual adaptation
and conciliation, and establish relations of
reciprocal regard. Whoso sets up barriers to
these, thwarts the ways of Providence, crosses
the tendencies of human nature, and directly
interferes with the laws of God.

DUTY OF THE COURT.

May it please your Honors : Such are some
of the things which I have felt it my duty to
say in this important cause. I have occupied
much time, but I have not yet exhausted the
topics. Still, which way soever we turn, we
are brought back to one single proposition
the Equality of men before the law. This
stands as the mighty guardian of the colored
children in this case. It is the constant, ever-
present, tutelary genius of this Commonwealth,
frowning upon every privilege of birth, every
distinction of race, every institution of Caste.
You cannot slight it, or avoid it. You cannot
restrain it. God grant that you may welcome
it. Do this, and your words will be a "char-
ter and freehold of rejoicing" to a race which,
by much suffering, has earned a title to much
regard. Your judgment will become a sacred
landmark, not in jurisprudence only, but in the
history of Freedom, giving precious encourage-

6

rnent to the weary and heavy-laden wayfarers
in this great cause. Massachusetts through
you, will have fresh title to regard, and be once
more, as in times past, an example to the whole
land.

Already you have banished Slavery from this
Commonwealth. I call upon you now to ob-
literate the last of its footprints, and to banish
the last of the hateful spirits in its train. The
law interfering to prohibit marriages between
blacks and whites has been abolished by the
Legislature. Railroads which, imitating the
Boston schools, placed colored people apart by
themselves, are compelled, under the influence
of an awakened public sentiment, to abandon
this regulation and to allow them the privileges
of other travelers. Only recently I have read
that his Excellency, our present Governor,
took his seat in a train by the side of a negro.
In the Caste schools of Boston the prejudice of
color seeus its hnai refuge, it is for you to
drive it forth. You do well when you rebuke
and correct individual offenses ; but it is a
higher office to rebuke and correct a vicious
institution. Each individual is limited in influ-
ence ; but an institution has the influence of
numbers organized by law. The charity of
one man may counteract or remedy the un-
charitableness of another ; but no individual
can counteract or remedy the uncharitableness
of an established institution. Against it pri-
vate benevolence is powerless. It is a monster
which must be hunted down by the public and
by the constituted authorities. And such is
the institution of Caste in the Common Schools
of Boston, which now awaits a just condem-
nation from a just Court.

One of the most remarkable expositions of
slavery is from the pen of Condorctt in a
note to the "Thoughts'' of Pascal. Voltaire in
his later commentary on the same text speaks
of this "terrible" note and adopts its con-
clusion. In the course of this arraignment
the philosopher, painting the character of the
slave- master says, ' Such is the excess of his
stupid contempt for this wretched race that
returning to Europe he is indignant to see
them clothed as men and placed by his side.' "
(1.) Thus the repugnance of the slave-mas-
ter to see the wretched race placed by his
side is adduced as crowniGg evidence ofthe in
humanity of slavery. But this very repug-
nance has legal sanction among us, and you
are to determine whether it shall be longer
permitted. Slavery in one of its enormities is
now before you for judgment. Do not hesi-

>

(1.) Penates de Pascal, note de Condorcet No. 109.

tate to strike it. Let t> e blow fall which shall
end its domination herVin Massachu .

The civilization of e age joins i;
peal. Allow me to re< ir.d yen that this pre-
judice of color is pecul&H- to our cc untry. You
do not forget that two i'Duths of African blood
only recently gained tho highest lienors in a
college at Paris, and rjh the same day dined
with the King of France, the descendant of St.
Louis, at the Palace of theTuileries. And let
me add, if I may refer to my own experience,
that at the School of Law in Paris, I have sat.
for weeks, on the saVe benches with colored
persons, listening, 1';.. myself, to the learned
lectures of Degeran 3o .ind of Rossi nor do I
remember, in the % of sensitive young

men, any feeling tfywaM them except of com-
panionship and respect. In Italy, at the Con-
vent of Pallazuola, on tke shores ofthe Alban
Lake, and the very site of the ancient Alba
Longa where I was once a guest, I hav;> ssen,
for days, a native of Abyssinia, only recently
from his torrid home, and ignorant ofthe lan-
guage spoken about him, mingling with the
Franciscan friars, whose visitor and scholar he
was, in delightful and affectionate familiarity.
Do I err in saying that the Christian spirit
shines in these examples ?

And, finally, this Christian spirit I invoke.
Where this prevails there is neither Jew nor
Gentile, Greek nor barbarian, bond nor free;
but all are alike. From this we derive new and
solemn assurance of the Equality of man, as
an ordinance of God. Human bodies may be
unequal in beauty or strength ; these mortal
cloaks of flesh may differ, as do these worldly
garments : these intellectual faculties may vary,
as do opportunities of action and advantages
of positions ; but amid all unessential differ-
ences there is essential agreement and equal-
ity. Dives and Lazarus were equal in the
sight of God. They must be equal in the sight
of all just institutions.

This is not all. The vaunted superiority of
the white race imposes corre.' bonding duties.
The faculties with which they arc endowed,
and the advantages they possess, must be ex-
ercised for the good of all. If the colored
people are ignorant, degraded, and unhappy,
then should they be especial objects of your
From the abundance of your posses-
sions you must seek to remedy their lot. And
this Court, which is parent to all the unfor-
tunate children of the Commonwealth, will
show itself most truly parental, when it reaches
down, and, with strong arm of law, elevates,
encourages, and protects our colored fellow-
citizens.